Cassidy v. Glossip

• Decision Date: 08 November 1967
• Docket Number: No. 40645,40645
• Citation: 231 N.E.2d 64,12 Ohio St.2d 17
• Parties: , 41 O.O.2d 153 CASSIDY, Appellee, v. GLOSSIP, Appellant.
• Court: Ohio Supreme Court

Page 17

12 Ohio St.2d 17

231 N.E.2d 64, 41 O.O.2d 153

CASSIDY, Appellee, v. GLOSSIP, Appellant.

No. 40645.

Supreme Court of Ohio.

Nov. 8, 1967.

Syllabus by the Court

1. Section 5 of Article I of the Ohio Constitution does not prevent a court from giving effect to a waiver of a jury trial by a party who has a right to a jury trial.

2. A party who has a constitutional right to trial by jury may be required to make a demand for a jury trial in order to have a jury trial, and he may be required to make such demand within a reasonable period, such as three days before the time that his action has been set for trial. (Paragraph one of the syllabus of Hoffman v. State, 98 Ohio St. 137, 120 N.E. 234, paragraph one of the syllabus of Goldberg Co. v. Emerman, 125 Ohio St. 238, 181 N.E. 19, and paragraph one of the syllabus of Mentor v. Giordano, 9 Ohio St.2d 140, 224 N.E.2d 343, approved and followed.)

3. A Common Pleas Court has inherent power to make reasonable rules regulating the practice and procedure in such court where such rules do not conflict with the Constitution or with any valid statute.

4. A rule of a Common Pleas Court, providing that a party shall request a jury not later than the third day prior to the date of the commencement of the trial or shall be deemed to have waived a jury trial, is a procedural rule that does not deny a party his right to a jury trial or otherwise conflict with Section 5 of Article I of the Ohio Constitution.

5. Such a rule does not conflict with Section 2311.04 or 2315.20, Revised Code. (Cieveland Ry. Co. v. Halliday, Admr., 127 Ohio St. 278, 188 N.E. 1, explained and distinguished. Bonewitz v. Bonewitz, 50 Ohio St. 373, 34 N.E. 332, approved and followed.)

6. The syllabus of a decision of the Supreme Court of Ohio states the law of the case.

7. The Common Pleas Court may adopt a rule of practice even if a similar rule has not been adopted in every other Common Pleas Court of the state. (Paragraph two of the syllabus of Cleveland Ry. Co. v. Halliday, Admr., 127 Ohio St. 278, 188 N.E. 1, explained and distinguished.)

This is an action instituted in the Common Pleas Court of Butler County to recover damages for injuries received in an automobile accident.

Rule 22 of that court provides:

'In all civil cases triable to a jury, counsel desiring a jury must make a request for such jury of the Clerk of Courts not later than the third day prior to the date of the commencement of the trial. Failure to make such a request shall be deemed a waiver of jury trial.'

There were pretrial proceedings in this case on November 8, 1965.

The case was set for trial on November 18, 1965.

Request for a jury was first made the morning of November 18. This request was denied.

Thereafter, after consideration of the evidence, the Common Pleas Court found that plaintiff was entitled to a judgment for $12,500 and rendered judgment for that amount.

That judgment was affirmed by the Court of Appeals.

The cause is now before this court on an appeal from the judgment of the Court of Appeals.

Casper & Casper and Jack A. Casper, Middletown, for appellee.

Janson, Smith, Davis & Bixler, William C. Ailes and Kenneth J. Cummings, Canton, for appellant.

TAFT, Chief Justice.

Defendant contends that Rule 22 of the Common Pleas Court of Butler County is invalid. That rule provides that a party shall request a jury not later than the third day prior to the date of the commencement of the trial or he shall be deemed to have waived a jury trial.

Section 5 of Article I of the Constitution of Ohio reads, so far as pertinent:

'The right of trial by jury shall be inviolate * * *.'

It is well settled that the foregoing constitutional provision does not prevent a court from giving effect to a waiver of a jury trial by a party who has a right to a jury trial. It has also been held that a party who has a constitutional right to trial by jury may be required to make a demand for a jury trial in order to have a jury trial, and that he may be required to make such demand within a reasonable period, such as three days before the time that his action has been set for trial.

In Hoffman v. State (1918), 98 Ohio St. 137, 120 N.E. 234, paragraph one of the syllabus reads:

'Statutes providing in substance that before an accused shall be entitled to a jury in the trial of misdemeanors or petty offenses under municipal ordinances, where imprisonment is made a part of the penalty, he must demand the same, are not in any wise violative of the constitutional right to trial by jury.'

In Goldberg Co. v. Emerman (1932), 125 Ohio St. 238, 181 N.E. 19 (which was a civil action for money only in the Cleveland Municipal Court at a time when the only review of a judgment in such a case in that court was by a proceeding in error to the Court of Appeals where no jury would be provided. See Section 1579-36, General Code, as enacted in 108 Ohio Laws, Pt. 1, 166, 170), paragraph one of the syllabus reads:

'Section 1579.24, General Code, authorizing courts to formulate a rule providing how long before the trial a demand for a jury should be made and requiring such demand to be in writing, is constitutionally valid. Such statute and rule merely regulate the method of making the demand; they do not deny a party his right to a jury trial.'

In Mentor v. Giordano (1967), 9 Ohio St.2d 140, 224 N.E.2d 343, where defendant had been fined and sentenced to 15 days in jail, paragraph one of the syllabus reads:

'The guarantee of a jury trial in criminal cases contained in the state and federal Constitutions is not an absolute and unrestricted right in Ohio with respect to misdemeanors, and a statute, ordinance or authorized rule of court may validly condition the right to a jury trial in such a case on a written demand therefor filed with the court a specified number of days before the date actually set for the trial for the offense charged.'

In Hoffman v. State, supra (98 Ohio St. 137, 120 N.E. 234), it is stated in the opinion, at page 140, 120 N.E. at page 235, by Wanamaker, J.:

'* * * a requirement imposed by law upon the accused to demand his right before he may enjoy it is not a restriction, limitation, or violation of such right.'

In Mentor v. Giordano, supra (9 Ohio St.2d 140, 224 N.E.2d 343), it is stated in the opinion by Zimmerman, J., at page 143, 224 N.E.2d at page 346:

'* * * So a statute or authorized rule of court to the effect that a defendant shall not be entitled to a jury trial unless he makes demand therefor in writing within a specified time before trial is valid. * * *' With respect to a rule requiring a demand for a jury before trial, it is stated by Jones, J., in Goldberg Co. v. Emerman, supra (125 Ohio St. 238, 181 N.E. 19), in the opinion, at page 240, 181 N.E. at page 19:

'* * * It merely regulates the method of making the demand in the interest of economy and orderly procedure. It does not deny a party his right to a jury trial. * * *'

See also Annotation, 64 A.L.R.2d 506, 513 et seq.

Thus, Rule 22 of the Butler County Common Pleas Court is a procedural rule that would not be invalid by reason of any conflict with the provisions of Section 5 of Article I of the Ohio Constitution.

Courts are vested with inherent power to establish procedural rules if they are reasonable and do not conflict with the organic law, or any valid statute.

As stated by Judge Allen in the opinion in Cleveland Ry. Co. v. Halliday, Admr. (1933), 127 Ohio St. 278, 188 N.E. 1, at page 283, 188 N.E. at page 2:

'* * * aside from common-law or statutory grant, the power to make rules of procedure is inherent in the judicial department. * * *

'Section 1558, General Code (Section 2301.04, Revised Code), which grants to courts of common pleas * * * the power to make rules with reference to court procedure, is only declaratory of the inherent rule-making power already existing in courts. * * *'

Prior to 1953, there was substantial constitutional basis for statements such as those found in paragraph three of the syllabus of Cleveland Ry. Co. v. Halliday, Admr., supra (127 Ohio St. 278, 188 N.E. 1); paragraph two of the syllabus in Van Ingen v. Berger (1910), 82 Ohio St. 255, 92 N.E. 433; paragraph two of the syllabus of Meyer v. Brinsky (1935), 129 Ohio St. 371, 195 N.E. 702; and paragraph one of the syllabus of Brown v. Mossop, Admr. (1941), 139 Ohio St. 24, 37 N.E.2d 598, to the effect that statutes might prevail over reasonable rules of procedure adopted by a court under its inherent rule-making power. At that time Article XIV of the Ohio Constitution could provide substantial support for the conclusion that a legislative enactment might interfere with the inherent rule-making power of the Common Pleas Court. However, in 1953, that article of the Constitution was repealed.

Also, in a series of recent cases involving our Rule XVIII (formerly Rule XXVII) relating to disciplinary procedure, this court has made it abundantly clear that statutory provisions may not interfere with reasonable rules of practice relating to the disciplining of attorneys and adopted by this court pursuant to its inherent rule-making power. In re McBride (1956), 164 Ohio St. 419, 132 N.E.2d 113; Cleveland Bar Assn. v. Pleasant (1958), 167 Ohio St. 325, 148 N.E.2d 493; and Mahoning County Bar Assn. v. Franko, 168 Ohio St. 17, 151 N.E.2d 17.

Provision is made by Section 3, Article IV of the Ohio Constitution for a Common Pleas Court in each county. Although Section 4 of that article provides that 'the jurisdiction of the Courts of Common Pleas * * * shall be fixed by law,' there is now nothing in the Constitution conferring upon the General Assembly authority to infringe upon the inherent power of the Common Pleas Court to establish reasonable rules regulating its proceedings.

However, it is not necessary to consider whether a Common Pleas Court may adopt a reasonable procedural rule under its inherent rule-making power, notwithstanding a conflict...